The Optional Protocol to the Convention against Torture (OPCAT) in New Zealand 2007−2012
A review of OPCAT implementation by New Zealand’s National Preventive Mechanisms – April 2013
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ISBN: 978-0-478-35650-2 (Printed) 978-0-478-35651-9 (Online)
Published June 2013
Contents
A review of OPCAT implementation by New Zealand’s National Preventive Mechanisms – April 2013
Commission contact details
Foreword
Executive summary
The first five years
Progress
Challenges
Issues going forward
Resources
Publication of visit reports
Increased engagement with civil society
Increased levels of expertise within the NPM
Improving how the NPM works
OPCAT in New Zealand 2007−2012
Introduction
OPCAT
OPCAT in New Zealand
Ratification
Legal framework
The scope of monitoring
New Zealand’s NPMs
Human Rights Commission
Ombudsman
Independent Police Conduct Authority
Children’s Commissioner
The Inspector of Service Penal Establishments
Working methods
Monitoring visits
The first five years
Development of the OPCAT preventive monitoring system
Activities
Good practices
Working collaboratively
Progress made
Challenges
Practical issues
Understanding about OPCAT and the role of NPMs
Resourcing
Monitoring priorities
Complaints / monitoring roles
Access to expertise
Summary
Looking ahead – strengthening the effectiveness and impact of OPCAT monitoring in New Zealand
Resourcing
Costs of not investing in prevention
Publication of visit reports
What would be the purpose and benefit of publishing?
The implications of publication
Engagement with civil society
Raising awareness
Working with others
Levels of expertise within the NPM
Māori representation
Improving how the NPM works
Working as a collective
Scope of monitoring
Custody of children and young people
Joint designation
Aged care
Measuring impact
Conclusion
Foreword
2012 marked five years since New Zealand ratified the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).[1] It is timely, therefore, to review our progress, and to highlight and address ongoing challenges.
As we reflect on the last five years, and look ahead, the objective of OPCAT should be kept in mind. It is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.[2]
Despite its title, the protocol is not limited solely to preventing torture. The mandate it provides is broad and preventative. It encourages collaborative efforts to ensure systems and processes within places of detention are such that people who are detained, many of whom are amongst our most vulnerable citizens, are treated with dignity and respect, and that they are protected from ill-treatment or harm. International experience tells us that preventative monitoring minimises the possibility of ill-treatment or harm. It also reminds us that where ill-treatment or harm is found, prompt and impartial truth finding and acknowledgement of that truth, rehabilitation of the affected person and compensation for the affected person are critical to recovery from ill-treatment or abuse. As is the case with New Zealand’s accident compensation scheme this is often achieved without recourse to the courts and related burdens of proof.
OPCAT is significant in that it offers a means to translate human rights concepts into action, and it is by giving effect to human rights that we make them meaningful.
As chair of the Central National Preventive Mechanism (NPM) I would like to take this opportunity to draw attention to and acknowledge the work of New Zealand’s other designated NPMs. The Ombudsman, the Independent Police Conduct Authority, the Children’s Commissioner and the Inspector of Penal Service Establishments have all demonstrated unwavering commitment to ensuring detainees in New Zealand are treated in accordance with our international obligations, and contributing to the ongoing improvement of detention facilities in New Zealand.Much progress has been made due to the care and effort NPM personnel have applied to their work.
Since 2007 when OPCAT came into force in New Zealand our understanding of what is required to meet OPCAT’s objective has deepened. As NPMs we now have five years experience of what it takes to effectively monitor places of detention and we are very aware of the particular opportunities and challenges posed by OPCAT implementation in the New Zealand context. Although we are proud of our progress we also know that there is room for continual learning and improvement. Monitoring places of detention and preventing ill-treatment is an on-going task. Our hope is that this review will provide a solid basis for ensuring that we continue to carry out this important work in the most effective way possible.
David Rutherford
Chief Human Rights Commissioner
Central National Preventive Mechanism
Executive summary
The Optional Protocol to the Convention against Torture (OPCAT) is a unique human rights instrument, which focuses on preventing human rights violations of people who are deprived of liberty. It establishes international and national monitoring mechanisms to visit places where people are detained, with the overall aim of preventing torture and ill-treatment. At the international level a Subcommittee on Prevention of Torture (SPT) is mandated to visit States Parties and make recommendations. At the national level, OPCAT obliges States parties to establish NPMs to monitor the conditions of detention and work collaboratively with all those involved to ensure respect for the human rights of detainees.
New Zealand has established a multiple body NPM comprising four bodies – the Ombudsman, the Independent Police Conduct Authority, the Children’s Commissioner and the Inspector of Service Penal Establishments – each responsible for specific places of detention, and a central NPM, the Human Rights Commission, responsible for providing coordination.
New Zealand’s NPMs have ensured that they meet the requirements of independence under OPCAT, and have established staff and systems to carry out their role. Visit procedures follow the approach set out in international guidelines, and NPMs’ assessment of the conditions and treatment of detention facilities takes account of international human rights standards.
The first five years
The first five years of OPCAT in New Zealand has established a very solid foundation for future development. Following an initial establishment phase, the NPMs’ practice continues to develop. Altogether there are over 559 places of detention in New Zealand. In the first five years NPMs have undertaken 383 visits to places where people are detained. NPM practice has developed to include, for example, the use of different types of visits and policy work to address systemic issues.
A considerable degree of cooperation has developed amongst NPM members, including participation in each others' visits. Regular meetings of NPMs provide a forum for sharing information, experience and ideas.
Progress
As a result of implementing OPCAT there have been improvements in the conditions of detention and in the way that detainees are treated within New Zealand. The fact that detaining agencies have been so willing to take OPCAT on board has been a significant factor in the success of implementation so far.
Examples of the positive difference that has been made through OPCAT monitoring include: upgrades and modifications to facilities; changes to policy and practice; and in a number of instances, identifying and addressing issues or problems relating to the situation of individuals in detention.
Challenges
Many of the challenges in implementing OPCAT have arisen from the practical realities of establishing a new monitoring system. These include timetabling and working out the optimum frequency and duration of visits, what resources are required, and the standards and measures to be applied.
OPCAT is not only a relatively new instrument in terms of being recently adopted, it is also new in terms of the approach it takes and the framework it establishes. Awareness and acceptance of OPCAT monitoring has grown through efforts to raise awareness of the role and function of NPMs, and after institutions have had the opportunity to see how it works in practice.
The overarching challenge faced by NPMs is how to function most effectively within the limited resources they have available. The answer is most likely to lie, at least in part, in further developing the collaborative ways of working that have become the basis of OPCAT implementation in New Zealand.At the same time it must be recognised that maintaining independence and continuing to build credibility are crucial to NPM effectiveness. Furthermore, the potential costs of not investing in OPCAT prevention include compensation claims for breaches of rights, legal medical and rehabilitation costs, and wider detriment to public trust and confidence in the detention systems.
Issues going forward
The knowledge, experience and understanding of NPMs has strengthened over the last five years. However, it is widely accepted that OPCAT implementation is a continual and evolving process. NPMs welcome the opportunity provided by this five year milestone to review progress and look ahead. The following aspects of NPM operation have some potential to enhance the impact of OPCAT in New Zealand.
Resources
NPMs have had very limited additional resourcing to carry out their OPCAT functions. To manage within the funding available, NPMs have smaller visit teams and undertake visits with less frequency than is envisioned by the OPCAT. In particular, there is a need for additional resources for NPMs to enable the frequency and coverage of visits required to meet the objectives of the OPCAT, and to hire the services of experts to assist with those visits.
Publication of visit reports
To date NPMs have published an annual report outlining their activities, achievements and any issues of concern. Information relating to individual visits is not made public. There are different views amongst New Zealand’s NPMs as to whether visit reports can and should be published. This is an issue which NPMs are currently working to resolve.
Increased engagement with civil society
An engagement strategy is currently being developed by the NPMs to provide an overall framework for communicating about, and engaging with others, on OPCAT.It is hoped that engaging better with others, especially civil society, will help NPMs to create a culture of support for OPCAT work and the importance of treating people who are detained fairly.
Increased levels of expertise within the NPM
NPMs have identified gaps in their expertise, particularly in mental health (psychological) and medical expertise. NPMs are also exploring how they might develop relationships with other organisations and professional bodies to access the expertise they require on a no-cost or minimal cost basis, while maintaining the necessary degree of independence. It is not yet clear how feasible or sustainable this will be.
Improving how the NPM works
There are some challenges in a multiple NPM model and issues to do with developing the NPM as an institution. Many of these merely reflect the nature of collective enterprises. They include, for example, establishing and maintaining:
1the institutional practices of the NPM as a collective, including the management of knowledge and information
2decision-making processes
3the means to respond collectively to cross-cutting issues.
There are other issues too which impact on how the NPMs’ functions are carried out such as the scope of monitoring, including the definition of ‘place of detention’ and ensuring designations remain relevant and useful. As noted already there are significant resourcing issues, and related to this are also questions about how to measure impact.
OPCAT in New Zealand 2007−2012
The development of national preventive mechanisms should be considered an ongoing obligation, with reinforcement of formal aspects and working methods refined and improved incrementally.[3]
Introduction
The Optional Protocol to the Convention Against Torture (OPCAT) is a unique human rights instrument because it focuses on the prevention of human rights abuses rather than redress after the fact. This approach is based on the simple, well-founded[4] idea that the best way to prevent the ill-treatment of those who are detained is to make the operations of places of detention more transparent through systematic and regular monitoring.
Since New Zealand ratified OPCAT in 2007 there have been a number of developments, both nationally and internationally. As a result there is a growing body of knowledge and understanding about OPCAT implementation, including the establishment and practice of National Preventive Mechanisms (NPMs).
OPCAT acknowledges that truly effective prevention work requires more than just monitoring. Its broad preventive mandate recognises that work to promote and protect the human rights of detainees is also essential. A proactive, collaborative and constructive approach to OPCAT compliance is encouraged by the protocol itself and this is the way it is being implemented in New Zealand.
The purpose of this review is to reflect on the progress of New Zealand’s NPMs over the last five years and to lay a foundation for planning future OPCAT implementation.
Specifically, the objectives of this review are to:
1explain the New Zealand monitoring system, and outline its development
2reflect on the progress, challenges and lessons learnt, and
3identifyways to strengthen the effectiveness and impact of OPCAT monitoring in New Zealand.
OPCAT
After a thirty year gestation period OPCAT was adopted by the United Nations in December 2002 and came into force in 2007 after20 countrieshad ratified it. There are currently 65 States parties to OPCAT, 21 additional state signatories and 46 states have designated their NPMs.[5]
The use of torture and cruel, inhuman or degrading treatment or punishment had long been prohibited by the international community.[6]In 1689 the UK Bill of Rights outlawed “cruel and unusual punishments”. This provision was copied into the US Constitution on 1791. THE 1689 UK provision is still part of New Zealand’s law. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted in December 1984. However OPCAT is significant because it establishes the means to implement the aspirations set out in these earlier treaties. It does this by establishing a framework for monitoring places of detention through regular visits by NPMs.
Establishing a system of regular visits by monitoring bodies, some of which are unannounced, has a deterrent effect. However the main objective, rather than identifying and redressing violations is to “analyse the overall functioning of places of detention and provide constructive, systemic recommendations aimed at improving the conditions and treatment of detained persons.”[7]
The overall aim is to prevent torture or other ill-treatment by “reducing risks and creating an environment where violations (torture and other ill-treatment) are less likely to occur.”[8]
In this way the protocol establishes a pre-emptive approach whereby regular visits, followed by constructive feedback to the facility being monitored, are used to promote full respect for the human rights of those deprived of their liberty and to protect them from torture or other cruel, inhuman or degrading treatment or punishment. Monitoring also enables the identification of systemic issues relating to conditions of detention.
The OPCAT framework uses the “twin pillars” of international and national monitoring. At the international level a Subcommittee on Prevention of Torture (SPT) is mandated to provide an international dimension to preventive monitoring. As well as conducting visits and making recommendations itself, the SPT provides advice and support to NPMs which strengthens their capacity. It also liaises with others in the field, nationally, regionally and internationally, to enhance torture prevention.
In 2010 the membership of the SPT was expanded increasing its capacity to provide guidance and assistance to NPMs and generally contribute to the growing body of understanding as to what constitutes best practice under OPCAT. However, the SPT has noted that:
… it is not possible to devise a comprehensive statement of what the obligation to prevent torture and ill-treatment entails in abstracto.It is of course both possible and important to determine the extent to which a State has complied with its formal legal commitments as set out in international instruments and which have a preventive impact but whilst this is necessary it will rarely be sufficient to fulfil the preventive obligation: it is as much the practice as it is the content of a State’s legislative, administrative, judicial or other measures which lies at the heart of the preventive endeavour.[9]
As at the date of this report, the SPT has just undertaken its first visit to New Zealand (29 April – 8 May 2013).
At the national level, OPCAT obliges States parties to establish NPMs to monitor the conditions of detention and work collaboratively with all those involved to ensure respect for the human rights of detainees. OPCAT envisages that,in reality, the NPM will carry out most OPCAT monitoring work within a country as they are better placed than the SPT to establish the necessary relationships and conduct regular visits.
Internationally, a number of NPMs have been established.Two other States, the United Kingdom and more recently the Netherlands, have chosen multi-body NPMs such as are in place in New Zealand.
Recent guidance from the SPT emphasises the need for ongoing evaluation and developmentof NPM processes and practice, and provides some direction on how this may be done.[10]This approach fits with the overall spirit of OPCAT which is one of continually working together to prevent torture and other ill-treatment of people who are detained.